Citation: Sookbir v. Wawanesa Insurance, 2023 ONLAT 20-008613/AABS

Licence Appeal Tribunal File Number: 20-008613/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Gwendoline Bidaisee Sookbir

Applicant

and

Wawanesa Insurance

Respondent

PRELIMINARY DECISION AND ORDER

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

Gwendoline Bidaisee Sookbir, Applicant

Gus Triantafillopolous, Counsel

Shannon Kelly, Observing Counsel

Amirali Golpira, Observing Counsel

For the Respondent:

Mathew Lawless, Adjuster

James Schmidt, Counsel

Observing Members:

Janet Hueglin Hartwick, Janet Rowsell

Tanjoy Delo & Taivi Lobu

HEARD:

By videoconference on April 27, 2022,

with closing arguments in writing

OVERVIEW

1The applicant was involved in an automobile accident on September 12, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.

PRELIMINARY ISSUE

2The Tribunal must decide the following preliminary issue:

i. Is the applicant barred from proceeding with her claim for income replacement benefits because she failed to submit an OCF-3 in accordance with section 36 of the Schedule?

RESULT

3The applicant is not barred from proceeding with her claim for income replacement benefits, as the Tribunal found that she complied with section 36 of the Schedule.

ANALYSIS

Background

4The applicant applied for accident benefits (“OCF-1”) to the respondent on approximately October 3 of 2018 and was not represented. The applicant submitted her disability certificate dated September 26, 2018 (‘OCF-3’) to the respondent in October of 2018 (“first OCF-3”). This OCF-3, completed by Dr. Shirin Bonakdar, chiropractor, was unclear. The issue before the Tribunal is if the applicant complied with section 36 of the Schedule.

5The parties also disagree if the applicant sent the respondent a second OCF-3, authored by Dr. Marco Curcio, chiropractor, by fax.

6The parties agreed that the Interim Order of the oral portion of the hearing did not correctly reflect the issue in dispute and requested that the Tribunal reflect it in this decision, which was done.

Was the first OCF-3 dated September 26, 2018, complete pursuant to the Schedule?

7Section 32(6) of the Schedule states that if an insurer receives an incomplete or unsigned application for certain benefits such as an income replacement benefit (‘IRB’), it shall notify the applicant within ten business days after receiving the application and advise the applicant of the missing information needed or required signature.

8Section 35(1) of the Schedule states that if an applicant may qualify for two or specified benefits, being the IRB, the non-earner benefit (‘NEB’) and the caregiver benefit, the insurer shall, within 10 business days after receiving the application, give notice to the applicant advising her she must elect, within 30 days after receiving the notice, the benefit she wishes to receive.

9Section 36(2) of the Schedule states that an applicant applying for a specified benefit such as an IRB shall submit a completed disability certificate with her application under section 32 of the Schedule. Section 36(3) of the Schedule states that an applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted.

10Section 36(4) of the Schedule states that after an insurer receives an application and completed disability certificate, within 10 business days, it shall either pay the specified benefit, give the insured person a notice explaining why the insurer does not believe the insured person is entitled to the specified benefit and, if the insurer requires an examination under section 44 related to the specified benefit, advise the insured person of the requirement for examination or send a request to the insured person under section 33(1) or (2) of the Schedule.

11Section 66 of the Schedule states that a disability certificate under sections 21, 36 or 37 of the Schedule shall be in a form approved by the Chief Executive Officer. Section 67(1)(a) of the Schedule states that any document required by section 66 of the Schedule to be in a form approved by the Chief Executive Officer and any other document specified in a Guideline is duly completed and includes all information required by the Schedule to be included in it, if every field not identified on the form as an optional field is completed in accordance with section 67(2) of the Schedule.

12The applicant submitted that her first OCF-3 was complete based on section 36(2) of the Schedule and entitles her to pursue an IRB. The applicant did admit that her first OCF-3 was not clear, as the OCF-3 states that the applicant was “not substantially unable to perform the essential tasks of her employment at the time of the accident”, which suggests she might not meet the pre-104-week IRB test and that she could not return to work on modified duties. The OCF-3 also states that the applicant suffers a complete inability to carry on a normal life. The applicant submitted that despite these conflicting findings, the respondent confirmed receipt¹ of the applicant’s OCF-1 and OCF-3 and entitlement to an NEB and requested the applicant attend an Insurer’s Examination (“IE”).

13The applicant noted that her first OCF-3 comments on her IRB eligibility, as her doctor found she could not work on modified duties, thereby entitling her to an IRB. The applicant also noted that the respondent was or ought to be aware that the applicant was working, based on her reports to all of the IE assessors and tax summaries for 2018. The applicant argued that based on this, the respondent accepted the applicant’s OCF-3 based on section 36(2) of the Schedule and that this position was supported by the testimony of Mathew Lawless, the respondent’s representative and claims adjuster.

14The respondent submitted that the applicant’s OCF-3 dated September 26, 2017, cannot be considered complete when accounting for the applicant’s evidence. The respondent relied on the applicant’s OCF-1, which stated that the applicant was unemployed, could not return to caregiving, and did not respond to questions related to her injuries preventing her from working. The respondent also submitted that the first OCF-3 showed that the applicant had not worked at least 26 of the previous 52 weeks before her accident or was receiving employment insurance.

15The respondent submitted that these inconsistencies show that the OCF-3 is not complete when considered with section 32 of the Schedule, as her OCF-3 did not say when the last day the applicant worked and was not optional to claim an IRB. The respondent argued the applicant provided an OCF-1 and OCF-3, which showed that she was not working at the time of her accident and did not meet the IRB test; as such, it submitted the applicant’s first OCF-3 is incomplete for the purpose of an IRB.

16The respondent also noted that the case law relied upon by the applicant did not address the issue of an incomplete application when there is information that the applicant does not qualify for an IRB, and based on Bell Express Vu, cannot be considered “complete”. The respondent argued that based on reading sections 5, 32, and 36 with sections 66 and 67 of the Schedule, the disputed OCF-3 is not complete for the purposes of the Schedule and to determine entitlement to an IRB.

17The applicant submitted that the respondent’s interpretation of section 36 of the Schedule is not supported by a plain reading of the legislation and interpretive case law. The applicant relied on the matter of the binding Supreme Court of Canada decision of Bell ExpressVu v. Rex², where the Court determined that the correct approach to statutory interpretation is that:

“the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

18The applicant submitted that the legislature intended section 36 to require an applicant to submit a fully completed OCF-3, and not an OCF-3 that fully supports eligibility for a benefit. The applicant argued the respondent’s interpretation is not supported by the Schedule’s intention of being consumer protection legislation.

19The applicant relied on the matter of Stone v Ayr Farmers Mutual Insurance³, where the Ontario Superior Court of Justice found that an OCF-3 that does not support a claim for an IRB does not automatically disentitle the injured applicant and stop the claim process.

20The applicant relied on the Tribunal’s decision of Snagg. v Certas Home and Auto Insurance Company⁴, where, based on the respondent’s actions, it was suggested that the respondent did not receive a complete OCF-3 and failed to raise this issue with the applicant. The Tribunal found that the applicant did complete an OCF-3 and was able to proceed with his application. The applicant submitted that the circumstances in the subject matter are similar, as the respondent did not advise the applicant that his OCF-3 was incomplete and only addressed entitlement. Furthermore, Snagg also noted the consumer protection feature of the Schedule and found that the appropriate remedy for ambiguity would be in favour of the insured.

21I find that the OCF-3 dated September 26, 2018, was complete and received for the purposes of the Schedule. I considered the respondent’s position concerning the contradictory evidence regarding the applicant’s employment status at the time of her accident. However, I also agree that as a self-represented applicant, more could have been done on the respondent’s side to assist the applicant. I was left asking myself why the adjuster did not reach out to the applicant to clarify the situation or send her an Election of Benefits (“OCF-10”) form.

22Regarding the completion of the first OCF-3 itself and section 32 of the Schedule, I understand that the applicant did not include details regarding her employment before her accident. However, again, I was left asking questions as to why the respondent did not address these omissions throughout its correspondence with the applicant.

23I fully agree that Dr. Bonakdar’s OCF-3 was at best confusing and contradictory. This applies even more so when reading the document with the applicant’s OCF-1. I also considered the respondent’s arguments that the OCF-3 does not support a claim for an IRB. However, I found Stone persuasive, as it addressed this specific issue. Therefore, I agree that the OCF-3 in dispute does not automatically disentitle the applicant from the benefit. Instead, that is better left for the substantive hearing adjudicator to decide, as the issue of entitlement is not before me.

24I disagreed that the plain language reading of sections 5, 32, 36, 66 and 67 Schedule specifically show that the applicant’s OCF-3 was incomplete. Moreover, I was persuaded by Snagg concerning section 32(6) of the Schedule as the decision addressed a similar situation to that of the applicant. Both Snagg and section 32(6) oblige the respondent to inform the applicant of any incomplete forms and request the necessary and missing information. Had the respondent intended to take the position that the OCF-3 was not complete, it was obliged to notify the applicant of this, which was not the case.

25Therefore, the first OCF-3 was completed and received by the respondent and the applicant may proceed with her application before the Tribunal.

26Though I have determined that the applicant may proceed with her application since she provided the respondent with the first OCF-3, for the sake of the substantive hearing, I will address if the second OCF-3 was received by the respondent.

The onus for the second OCF-3

27The parties agreed that the onus of proof falls on the applicant regarding if her OCF-3 for her application for an IRB was submitted by section 36 of the Schedule.

28The applicant submitted that the parties agreed that there is a split onus in demonstrating that the applicant submitted her OCF-3; under section 36 of the Schedule, the applicant has the onus of showing she submitted an OCF-3, and the respondent has the onus of demonstrating that it did not receive the OCF-3.

29The respondent submitted the onus falls on the applicant to demonstrate if the OCF-3 was submitted in accordance with section 36 of the Schedule. The respondent agreed with the applicant that it has a tactical onus to answer the applicant’s evidence regarding the transmission of the OCF-3. It disagreed a reverse onus existed, namely that the second OCF-3 was not sent to the respondent.

30The applicant relied on the decision of 17-000388 v The Co-Operators, where the Tribunal found that the applicant had submitted his OCF-3 to the respondent via fax, even though the respondent claimed it never received it, pursuant to section 36 of the Schedule.

31The applicant reminded the respondent at that hearing on April 28, 2022, the respondent had agreed there was a reverse onus applied in the event the applicant was able to show that she submitted an OCF-3. The applicant argued that the respondent had failed to provide any arguments or caselaw to refute the findings of 17-000388 v The Co-Operators. The applicant also submitted that as the applicant does not have control over the information required to show if a fax was received, the reverse onus must apply.

32I find that the applicant is correct, and there is a split onus on the parties. I was persuaded by 17-000388 v The Co-Operators, which like the subject matter currently before the tribunal, related to OCF-3 and fax issues and addressed the issue of a respondent not receiving an OCF-3 via fax, pursuant to section 36 of the Schedule. Therefore, I will apply it in this matter.

33I also agreed with the applicant’s characterization of the respondent’s position about the onus was unclear. The onus was discussed and established at the hearing conducted on April 28, 2022. Therefore, the applicant must show that she sent her fax to the respondent, and the respondent must show that even though the applicant claims to have sent the OCF-3 to the correct phone number, the fax service used by her clinic, Ring Central, was not reliable or reachable.

Did the respondent receive the second OCF-3?

34Section 64(2) of the Schedule states any document required or permitted under the Schedule to be given to a person may be delivered by faxing the document, in accordance with section 64(19) of the Schedule.

35Section 64(19) of the Schedule states that a document delivered by fax must include a cover page with the following information: the sender’s name, address and telephone number; the name of the person for whom the document is intended, the date of the accident to which the document relates, the name, address and telephone number of the person to whom the document relates, the date and time the fax is sent, the total number of pages faxed, including the cover page, the telephone number from which the document is faxed, and the name and telephone number of a person to contact in the event of transmission problems with the fax.

36The applicant argued that she provided the respondent with a second OCF-3 via fax and the respondent denied receiving it. The applicant submitted she provided the respondent with a second OCF-3 of Dr. Curcio, dated July 29, 2020. The applicant relied on the fax confirmation sheet to show that the second OCF-3 was sent from his clinic to the respondent on the day the OCF-3 was completed.

37The applicant also relied on the testimony of Dr. Ali Mirza, chiropractor, and the director of the clinic that employs Dr. Curcio. Dr. Mirza testified that the second OCF-3 was sent on July 29, 2020, by fax, using the Ring Central digital platform. The applicant also relied on the testimony of Mr. Lawless, who confirmed that the phone number to which the OCF-3 was faxed belonged to the respondent.

38The applicant submitted that based on a balance of probabilities, she has shown that the second OCF-3 was faxed to and received by the respondent. The applicant submitted that the respondent bears the burden of showing that it did not receive the second OCF-3, that Ring Central is an unreliable or novel service and that the disputed fax fails to comply with section 64 of the Schedule.

39The respondent submitted it did not receive the disputed OCF-3 by fax, and that the fax cover page did not comply with section 64(19) of the Schedule. The respondent submitted that Ring Central is a novel and proprietary service and therefore, the applicant has not shown that the fax was received by the respondent. The respondent argued that the applicant did not provide evidence about how Ring Central converts portable document format (“PDF”) documents to faxes. The respondent relied on the testimony of Dr. Mirza who confirmed that the fax cover letter and document were not saved, nor printed. He also confirmed that a fax transmission took three to five minutes to be sent and received.

40The respondent also relied on the Ring Central Fax Transmission Result email sent to Dr. Mirza’s clinic, which showed that the disputed fax was sent at 4:10 PM on July 29, 2020, and indicated the fax transmission was a “success” nearly instantly. The respondent submitted that the applicant has not shown what “success” means and if this confirms the fax was successfully transmitted to the respondent. The respondent submits the Ring Central Fax Transmission only confirms that the documents were successfully converted into fax format and not sent to the respondent and that the applicant’s failure to call direct evidence from a representative from Ring Central regarding this means that the Tribunal cannot conclude that the second OCF-3 was sent to the respondent.

41The respondent relied on the matter of Smith v. Intact Insurance Company⁵, where the Tribunal agreed with the requirements of faxing an OCF-3, and needed a cover page, based on section 64(19). The Tribunal also found that a fax confirmation would be confirmed via its transmission logs. The respondent also submitted that, unlike a “regular” fax, the message from Ring Central failed to provide a fax receipt. The respondent also noted that the Ring Central Fax Transmission stated that seven pages were faxed but the attached document only contained six pages.

42The respondent also submitted that the Ring Central Fax Transmission Result does not comply with section 64(19) of the Schedule, which states that a fax must include a cover page with the prescribed details that I have recited above.

43The respondent also argued that the second OCF-3 of Dr. Curcio was not completed and indicates that the applicant was working, without providing a date for her last day of employment and is not optional.

44The applicant submitted that in terms of Ring Central being novel or unreliable, the testimony of Dr. Mirza confirmed his clinic has been using the service without issue for ten years and never had an issue with the fax service. The applicant also noted that the respondent uses similar technology for its faxes. The applicant also relied on the testimony of Mr. Lawless, where he confirmed that faxes received by the respondent are saved electronically by assistants and not the adjusters and that it was possible the respondent did not receive the disputed OCF-3 due to a filing issue.

45The applicant relied on the matter of 17-000388 v The Co-Operators, where the Tribunal found that a fax has been lost due to human error based on the evidence of a fax confirmation page that was not impeached via technical evidence of an affidavit.

46The applicant argued that since the respondent did not provide evidence that contradicted the Ring Central Fax Confirmation via fax logs or expert evidence, it has not met its evidentiary onus and received the disputed OCF-3.

47The applicant submitted that the cover sheet for the second OCF-3 complied with section 64(19) of the Schedule and that the respondent has confused the applicant’s fax confirmation with her coversheet. Therefore, section 64(19) does not apply.

48The applicant also noted that the respondent’s counsel stated the document was a fax confirmation at the video portion of this hearing and provided no evidence to support its argument. The applicant relied on Dr. Mirza’s testimony, where he confirmed that the disputed document is a fax confirmation, not a cover sheet. T

49he applicant also argued that any challenges made by the respondent with respect to Dr. Mirza’s evidence would be improper to consider because the respondent had the opportunity to directly question the doctor about this and did not do so during cross-examination. Therefore the applicant submitted that based on Browne v. Dunn (1893) 1893 CanLII 65 (FOREP), 6 R. 67, H.L, the Tribunal should not consider these submissions.

50I find that the applicant has shown that she sent her second OCF-3 to the respondent via fax on July 29, 2020, and may proceed with her application for benefits before the Tribunal.

51I agreed with the applicant’s position that the evidence of Dr. Mirza was supported by the evidence of the Ring Central Fax Confirmation sheet and that this fax was sent to the respondent’s fax number, as confirmed by Mr. Lawless.

52Though I considered the respondent’s submissions with respect to Ring Central being a novel service, I must respectfully disagree. I instead preferred the position of the applicant, who noted that using digital PDF fax conversion systems was common and was used by the respondent and many other legal and medical professionals. I also understood the respondent’s argument about the “success” of the transition but note that it did not provide evidence to disprove the applicant’s position such as its fax logs.

53I also considered the respondent’s submissions about Ring Central being a proprietary service, however, the respondent failed to provide convincing evidence that the fax service was inaccessible or unreachable by someone who is not part of the Ring Central system, namely the respondent.

54As noted in the onus section, for the applicant to succeed, she must show that the sent the disputed OCF-3. Based on the above, I find that she has satisfied this requirement.

55I also found 17-000388 to be persuasive as it dealt with a similar set of facts, namely an OCF-3 that was allegedly sent by fax and was found to have been lost due to human error based on the totality of the evidence. When considering Mr. Lawless’s testimony concerning the OCF-3 and the totality of the evidence, I find that the disputed fax was lost by the respondent due to human error.

56Since the respondent has not shown that it did not receive the disputed OCF-3, the applicant may proceed with her substantive application before the Tribunal.

57In terms of the fax cover page issue and section 64(19) of the Schedule, as raised by the respondent, I agreed with the applicant’s submission that the respondent ought to have raised this issue at the video portion of the hearing; The respondent had the opportunity to do so during its cross-examination of Dr. Mirza and did not. Therefore, I agree that based on Brown and Dunn, I cannot consider the submissions concerning this now, as it would be improper.

58I also find that the respondent has not led persuasive evidence that the applicant’s fax cover sheet did not comply with section 64(19) of the Schedule. I agreed with the applicant’s submissions that the respondent has mixed up the applicant’s fax confirmation with her coversheet based on the evidence presented in the oral portion of this matter. Therefore, the applicability of section 64(19) is misplaced. As a result, the respondent’s submissions regarding Smith are irrelevant, as the respondent had taken issue with the incorrect document.

59I did review the document in dispute, but I agreed with the applicant’s argument that the disputed cover page, prima facie, appears to be a fax confirmation, based on the testimony of Dr. Mirza, and the submissions from the parties at the hearing.

60In terms of the respondent’s argument that the second OCF-3 was not complete, I reiterate my comments concerning the first OCF-3; had the respondent taken issue with the completion of the document, it had an obligation to notify the applicant of this based on section 32(6) of the Schedule. Since I was not presented with evidence otherwise, I reject this argument.

order

61The applicant may proceed with her with her claim for income replacement benefits as the Tribunal has found she submitted a complete OCF-3 on September 26, 2018, and July 29, 2020, based on section 36 of the Schedule.

Released: February 16, 2023